Occasionally we see a story in the news that we can’t resist blogging about, and this one is no exception: Last week, an emotional support alligator named “Wally” was denied access to Citizens Bank Park in Philadelphia to watch a professional baseball game. We thought this would be a nice opportunity to remind our readers about the difference between an emotional support animal (ESA) such as Wally, and a service animal.
As the story goes, Wally (a six-foot long, 55-pound alligator, equipped with a red harness and leash that boasts an impressive following on social media) and his owner were invited to the stadium by the Philadelphia Phillies to meet the team. When they arrived at the stadium too late to meet the players, a friend of Wally’s owner bought tickets so could stay for the game. While waiting in line, stadium employees informed Wally’s owner that the stadium only allows service animals, but not emotional support animals (even if they are purported hug-giving, couch-laying alligators). The owner did not object and stressed in the article that he and Wally were only there because they had been invited by the Phillies in the first place and did not claim that Wally is a service animal.
The stadium was correct that it did not have to allow Wally the ESA into the stadium. Under the Americans with Disabilities Act (ADA), public accommodations such as the stadium are only required to allow service animals entry, as the U.S. Department of Justice has explained in this useful FAQ.
So, in case you have an emotional support alligator, llama, cockatoo, pig, marmot, peacock, or other domesticated (or wild) creature that shows up at the door of your business, here’s a quick primer on the difference between an ESA and a service animal:
ESAs are Not Service Animals
The ADA defines a service animal as a dog that is individually trained to do work or perform tasks for people with disabilities. Public accommodations must allow service dogs to accompany customers with disabilities in all areas of a facility where the public is allowed to go. In addition, while miniature horses are not technically service animals, the ADA regulations require that public accommodations allow miniature horses that perform work or tasks for individuals with disabilities into their facilities just like service dogs, except they are subject to certain weight and size limitations. Businesses should also keep in mind that most states recognize service animals-in-training who are with their trainers as well.
In contrast, ESAs provide comfort and support to their owners by being present, but they are not trained to perform any work or task. We note, however, that dogs or miniature horses that are trained to perform work or tasks relating to a psychiatric disability (e.g. reminding someone to take their medications or taking affirmative action in the event of a panic attack) would be considered a service animal and must be allowed to accompany its owner into a public accommodation.
Unlike the ADA, the Fair Housing Act (FHA) recognizes ESAs as “assistance animals”—defined as any “animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or that provides emotional support that alleviates one or more identified effects of a person’s disability.” The FHA requires housing providers to allow ESAs as a reasonable accommodation (regardless of any pet restrictions) when a resident makes a request that is supported by reliable disability-related documentation or when the disability-related need for the animal is apparent.
The bottom line is that public accommodations do not have any obligation to admit an ESA.
There Are Only Two Questions You Are Allowed To Ask
When a customer with a purported service animal enters (or attempts to enter) a public accommodation, there are only two questions that can be asked if it is not obvious that the animal is a service animal: (1) Is the animal required because of a disability? and (2) What work or task has the animal been trained to perform?
One misunderstanding we hear often is the expectation that the animal must have documentation. Under the ADA, public accommodations are not allowed to request any documentation at all. Plus, the internet is awash with websites offering service animal registrations, licenses, and vests for a fee, which none of which are useful in any event. Instead of asking for documentation, the public accommodation should be asking the two authorized questions discussed above if the animal’s status as a service animal is not obvious. And remember, public accommodations also cannot ask for a demonstration of the tasks the animal performs or inquire about the nature or extent of the customer’s disability.
A public accommodation also cannot charge any special fees related to the animal (including pet fees) but can charge for damage caused by the animal if it normally charges for such damages. The business also has no obligation to care for or supervise a service animal.
Limited Reasons Why You Can Exclude A Service Animal
The ADA requires that service animals be under the control of their handler at all times. This means that the animal is harnessed, leashed, or tethered while in public places, unless these devices interfere with the service animal’s work or the person’s disability prevents their use. In those instances, the handler must use voice signals or other effective means to maintain control of the animal.
There are limited circumstances when a business can ask a person to remove a service animal from its premises. They are: (1) if the animal is out of control and the handler does not take effective action to control it; or (2) if the animal is not housebroken. In either instance, the business must invite the customer back without the animal or allow him or her to remain on the premises without the animal.
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Finally, it is important to remember that real service animals do important work and the tasks they are trained to perform are absolutely essential for people with disabilities. By one account, training a guide dog can take 3 years and can cost up to $50,000 annually. These types of trained, working animals must be admitted under Title III of the ADA for good reason.
